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Saturday, October 1, 2011

THE BRIEF HISTORY OF THE JUDICIARY OF TANZANIA

1. INTRODUCTION:

The United Republic of Tanzania (URT) was born on the 26th April, 1964 when the Republic of Tanganyika and the Peoples Republic of Zanzibar united and formed a single country in the name of Tanzania.

The Administration of Justice in Tanzania is an exclusive constitutional mandate of the Judiciary of Tanzania (JOT) vide articles 4, 107A and 107B of the Constitution of the United Republic of Tanzania 1977, Cap. 2 of the Laws. Its history can be traced back to the pre-colonial era, which said history developed gradually depending on the political and economic organization of the society as demonstrated herein bellow.

Despite the union of the two countries, one can still safely argue that Tanzania enjoys a twofold Legal System namely; that which applies in Tanzania Island (Zanzibar) on one hand and the other which is relevant to Tanzania Mainland (Former Tanganyika) though the two systems merge at the apex for, appeals from both the High Court of Zanzibar and that of Tanzania Mainland go to the Court of Appeal of Tanzania which is the Union Organ.

2. THE HISTORY OF ADMINISTRATION OF JUSTICE IN TANZANIA.

2.1: Administration of justice in Zanzibar

The judicial system in Zanzibar derives from a distinct history from that of Tanzania Mainland, hence deserving a separate account. The Administration of justice in Zanzibar has a long history which goes back to the early 19th century. The first court to be introduced was the Consular Courts, and then followed by the Liwalis’ Courts, Peoples’ Courts and finally the present dual system of Subordinate Courts with the High Court of Zanzibar as the appellate court, this was introduced in 1985 by the Zanzibar Constitution of 1984 and legislations passed by the House of Representatives.

The subordinate courts consist of Civil Subordinate Courts which enjoy both Criminal and civil jurisdiction and Kadhis’ Courts enjoy only civil jurisdiction where both parties are Muslims.

The Civil Subordinate courts which consist of Primary, District and Regional Magistrates Courts, apply statutory laws while the Kadhis’ Courts apply Islamic law exclusively. The Chief Justice of Zanzibar is the in charge of the Judiciary in Tanzania Zanzibar.

2.2: Administration of justice in Tanzania Mainland

2.2.1: Pre-colonial Period

Administration of justice during this time depended heavily on the social economic and political organization of the society in Tanganyika. Two systems of administration of justice namely; The Centralized and the Non-Centralized systems could be identified at the time.
The Centralized Systems was applicable to societies with chiefs who played both roles of adjudicators and that of governors. In the Non-Centralized systems the entire community took part in the adjudication of disputes. However in both systems there were no formalization of procedure in adjudication, the customs of the respective societies prevailed in the process.

2.2.2: Colonial Period

2.2.2.1: The German Colonial Period.

The Land currently covering Tanzania Main Land, was then included in what was called the German East Africa, it was subjected to the German Colonial Rule from 1886 up to the end of the First Ward War, 1918. During this Germany Colonial Rule the Administration of Justice was basically racial; there were two systems, one for Natives and another for Non-Natives. The adjudication at this time was made by the Governor and other Administrative Officers. The law applicable in matters relating to Native was actually vague.

The Germans left behind a Three-tier Court System; one for Europeans, a second under the Local Authorities and the Military Commanders for the Natives in effectively occupied areas and lastly, the Traditional Judicial Institutions in areas without effective German Control. The German Colonial Administration successfully attempted to impose upon the Natives a Pan-Territorial Legal System for the first time in the area though the system was strange to them, discriminatory and brutally applied by law enforcers.

2.2.2.2: The British Colonial Rule.

Britain was given mandate to administer the then German East Africa (the area currently covering Tanzania Mainland inclusive) after Germany had lost the First Word War vide article 22 of the Covenant of the League of Nations, this part of the World was renamed Tanganyika Territory following the Tanganyika Order in Council of 1920. In 1945 however, Britain opted to rule the Land as a Trust Territory, and this was so until the 9th of December, 1961 when Tanganyika Territory became independent.

The British Rule introduced two separate structures of judicial hierarchies and this was done through the above cited Tanganyika Order in Council 1920. The two hierarchies constituted a limb which had the High Court and Subordinate Courts which operated according to English law on one hand, and the limb which catered for matters where both disputants were natives applying customary law on the other. Despite several amendments to the law the administration of justice during British rule never did away with the racial discrimination.

In areas where the traditional system of courts existed there was no disruption of the indigenous society, the laws administered were known and accepted by the people and the Court Holders were familiar to the people, the system thus operated as a cushion to the impact of foreign domination. However, at this period, there was a combination of Executive and Judicial functions, this meant that majority of the people were condemned to executive justice in which impartiality and fair play could not be guaranteed.

2.2.3: Post independence (from 1961).

As hinted herein above, Tanzania mainland attained its independence in December 9th, 1961. In 1963 the courts system was integrated and racism was eliminated in the administration of justice by the enactment of the Magistrates Courts Act of 1963. This system remained undisturbed until 1984 when the present court system was introduced through The Magistrates Court Act 1984.
However, there was significant development in 1977 when the Constitution of the URT came into force and in 1979 when the Court of Appeal of Tanzania was established. These particular developments created the High Courts of Tanzania Mainland, that of Zanzibar and the Court of Appeal, a union matter. The Principal Judge is the Head of the High Court of Tanzania (Mainland). As I said above, appeals from both the High Courts of Tanzania (Mainland) and that of Zanzibar go to the Court of Appeal of Tanzania.

2.3: Historical Performance Of The Court Of Appeal (A Union Organ).

The Court Of Appeal of Tanzania was established in 1979 and its jurisdiction as a union organ and a final appellate judicial body is provided for by article 117 of the URT Constitution. The court is a successor to the Court Of Appeal For Eastern Africa and the Privy Council. The court has contributed a lot in the development of the law in Tanzania since its establishment. The Chief Justice of Tanzania is the Captain of both the Court of Appeal of Tanzania as a final Appellate Court in the country and the JOT as one of the three Pillars of the State, the two others being the Executive and the Legislature.

3. THE HISTORY OF LAW REPORTING IN TANZANIA

So long as the Judiciary of Tanzania and the whole legal fraternity in the country practice the law on the basis of the Common Law tradition, they strongly believe and uphold the doctrine of Precedent which cannot be effectively applied in the absence of reliable law reporting system, hence a need to recognize a brief history of Law Reporting in this forum.

In Zanzibar the law reporting started as early as 1861 by the Zanzibar Protectorate Law Reports of 1861 whereas in Tanzania Mainland it came during the British Colonial rule in 1921 by the Tanganyika Territory Law Report 1921.

The system continued after the independence. The Faculty of Law for the University of Dare es salaa compiled the High Court Digests (HCD) from 1967-1972, followed by the Law Reports of Tanzania (LRT) from 1973-1979. The current law reports in Tanzania are the Law Reports of Tanzania (TLR) from 1980-1998, which are the results of the industry of the Editorial Board operating under the chairmanship of the Hon. the Chief Justice of Tanzania.